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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 566-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
DEPARTMENT FOR CONSTITUTIONAL AFFAIRS
Tuesday 28 February 2006 RT HON LORD FALCONER QC and ALEX ALLAN Evidence heard in Public Questions 115 - 248
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 28 February 2006 Members present Mr Alan Beith, in the Chair James Brokenshire Mr Piara S. Khabra Julie Morgan Mr Andrew Tyrie Keith Vaz Jeremy Wright ________________ Witnesses: Rt Hon Lord Falconer of Thoroton, QC, a Member of the House of Lords, Lord Chancellor and Secretary of State for Constitutional Affairs, and Alex Allan, Permanent Secretary, Department for Constitutional Affairs, gave evidence. Chairman: May we welcome you both and do our usual formula of declaring interests. Jeremy Wright: I am a non-practising barrister in the field of criminal law. Chairman: I am not sure that I have to declare this but my wife is a Member of the House of Lords. Keith Vaz: I am a non-practising barrister. My wife holds a part-time judicial appointment. James Brokenshire: I am a non-practising solicitor. Julie Morgan: My daughter works for Shelter Cymru and one of my employees also works for the Special Support Services of the Legal Services Commission. Q115 James Brokenshire: Let us start with legal services. If the market for legal services is widened to allow banks and supermarkets and other sorts of providers to provide legal services to the public what impact do you think that will have on legal aid provision? Lord Falconer of Thoroton: I think it will not have a detrimental impact on legal aid provision. I do not think the fact that, for example, some practices do legal aid and some practices do private work and the private work, it might be said, supports the legal aid stuff, will be a factor in many practices. There are two things going on that may have a big impact on the supplier market for legal services. One is the changes in legal aid that Carter is working on and the other is in effect reducing the regulation in the market. I think the effect of that is going to be for there to be provision of legal services for consumers in some cases more accessibly, like in banks and supermarkets. As far as legal aid provision is concerned, I think in some places it will be provided through bigger firms than currently exist, thereby getting some economies of scale. I think the supplier market will change but I do not think it will have an impact on the provision of legal aid. Indeed, I think there will be more money available for front-line legal aid rather than supporting things like travel and overheads. Q116 James Brokenshire: Let us pick up on a couple of those things. Do you expect these new providers, like the supermarkets, to bid for legal aid contracts? Is that the expectation at the moment? Lord Falconer of Thoroton: I would not have thought so, no. I would have thought the effect of the reduction in regulation of the market would be for suppliers like that to provide services for people that they do not get at all at the moment - legal advice, for example, in relation to employment matters where they do not qualify for legal aid - or provide advice and services that are currently provided in solicitors' firms but that could be provided more accessibly in other places. Q117 James Brokenshire: You have touched upon this issue of the cross-subsidy and the fact that we could see some cherry-picking of certain "profitable" services and the fact that there is in operation in some firms some cross-subsidy of services by those firms in terms of being able to fund the legal aid services. Do I understand you correctly, that effectively you are saying that the impact of this change is likely to be that smaller firms may disappear and this will force a change towards larger firms? Lord Falconer of Thoroton: Yes, I think there might be a reduction in the number of smaller firms. Indeed, I am pretty sure that there will be. I think the difficulty about the sort of firm that you describe, one that has private work and public work, is that, because public work, ie, work that has been funded by legal aid, is being done in lots and lots of small firms, the price that is being paid has quite a significant element of things like overheads, so it is more expensive than it otherwise would be. There will be a drive to bigger suppliers as a result particularly of the Carter changes. I do not think that is going to reduce the supply of legal aid. Far from it: I think it will increase it because the amount of money that is being spent on the front line will go up and the amount of money being provided on the overheads will go down. Q118 James Brokenshire: Would you accept though that there is a risk that the public may find it more difficult to access those services, because obviously the smaller providers that you talked about tend to be on the high street, tend to be more accessible to the public? How do you see that changing? Lord Falconer of Thoroton: I do not think it will have that effect because most people, particularly when we are talking about criminal legal aid, though this is obviously not the only area of legal aid, will be referred to their solicitor by some other source, for example, the police or an acquaintance, and I do not think for one moment that drop-in selection of solicitors is the way that people choose them. I do not think therefore that it will make it less accessible than it is at the present. Indeed, the reduction in regulation - the supermarket, the bank - will for many services make them much more accessible. The other aspect one needs to look at is the question of price. You know that the conveyancing monopoly was removed from solicitors. The consequence of that was that solicitors tended to reduce their prices. The quality of conveyancing and the accessibility of conveyance providers did not go down. Q119 James Brokenshire: Just on the issue of professionalism and the general ethos, obviously, it is a question of whether we see that same ethos being maintained amongst all of the new entrants. Do you see that there is any problem if the Legal Services Commission moves to a market-based competitive tendering model of legal aid provision? Do you see that having any impact on that professionalism or ethos? Lord Falconer of Thoroton: Carter has made clear, and I fully agree with this, that we have to make sure that quality does not drop. What Lord Carter is proposing is that the professions themselves, the Law Society and the Bar Council particularly, should undertake more of a burden and an obligation in ensuring that professional standards are kept up. Both the Law Society and the Bar Council think that that is a good idea. I think the question of ethos is very important. If the professional societies, the professional regulators, the front-line regulators, think they should increase their role in that, that will probably have an effect of at least maintaining and possibly increasing professionalism. Q120 James Brokenshire: Just to come back to you on the issue of price, and I heard what you said, do you accept in any way that a move from an hourly based rate to a fixed fee will have any qualitative impact since lawyers will be, one might argue, less prepared to go the extra mile because they know that their fee is being capped in some way? Lord Falconer of Thoroton: I think lawyers are by and large professional. They want to do a good job. I think the effect of it being done on a fixed fee rather than an hourly rate is that there is some incentive there to ensure that cases are dealt with within a reasonable time, because we have seen cases go on for much too long. It is not only lawyers; it is a whole range of issues that cause that, but if you have a system of payment that provides an incentive for cases to be dealt with within a reasonable time then I think that is what will happen. Q121 James Brokenshire: I take it therefore that that is why you stress this emphasis on ethos and professionalism, because if you are on a fixed fee type of arrangement (that is not to say that this would happen) some people might be prepared to cut corners if things have gone on longer or become more complicated than they were expecting, and that might have a qualitative impact on the service thereafter once you discover that. Lord Falconer of Thoroton: We have got to be astute to ensure that quality is maintained. Whichever system you choose, fixed fee or hourly rate, we can all see round the room that there is a pressure in each of those arrangements for something that might not be the best result in terms of what is the best way to deal with a case. Whichever system you have, you have to be sure you have measures to ensure that quality and professionalism are maintained. Q122 James Brokenshire: Now that Lord Carter has completed the first phase of his report do you expect to reach an agreement with the Bar to preclude any recurrence of the "strike" that took place in the autumn of last year? Lord Falconer of Thoroton: The next stage in the process is for Lord Carter, having produced his interim report, which as it were sets out the principles that he wants to adopt in criminal legal aid, to have detailed discussions with the Law Society, with the Bar and with other legal service providers and try to reach an agreement in detail about what happens for fee schemes for this year, next year and the year after. What I am hoping to see is an agreement with the professions, in effect brokered by Lord Carter, for a detailed way forward. Q123 James Brokenshire: But from where you sit at the moment do you think that the outcome is looking more positive? Lord Falconer of Thoroton: Very much so, yes. What is very significant about what has happened is that Lord Carter produced his interim report, which is a very significant document, because it talks in practice about restructuring the supplier market, and there were some voices that said this was a bad thing but both the Law Society and the Bar Council gave it guarded support. Q124 James Brokenshire: What effect do you expect the proposals set out in the White Paper The Future of Legal Services: Putting Consumers First to have on the independence of the legal profession? Lord Falconer of Thoroton: I do not think it will have any detrimental effect on the independence of the legal profession. David Clementi's report, which was the foundation of the White Paper, says that one of the things that regulation has got to achieve is to ensure the independence of the legal profession because an independent legal profession is a necessary concomitant of a state that lives by the rule of law. The proposals that are made in the White Paper and which will be translated into a Bill before Parliament ensure the independence of the legal profession and I think both the Law Society and the Bar Council accept that view. Q125 James Brokenshire: It has been suggested that this does present a serious threat to the independence of the legal profession. Can you see where that argument might come from? Lord Falconer of Thoroton: I can, and the argument is based upon the proposition that if the Government appoints the Legal Services Board and the Legal Services Board in effect supervises the Law Society and the Bar Council, which are the front-line regulators, the Government, the argument goes, has the ability to control those who control the lawyers. The answer to that is that the Bill has to contain provisions which make people completely comfortable but that the people who appoint the Legal Services Board are independent of the Government and have no connection with, as it were, the political state before the appointment is made, very much in the way that the Judicial Appointments Commission will appoint judges from April in a way that I think people have confidence is entirely separate from the political Government. Q126 James Brokenshire: And therefore, if there are questions about the robustness of those proposals, that is something that you will consider very carefully to ensure that that model works? Lord Falconer of Thoroton: Yes indeed. I think that is a very important point. I think people have to have confidence that the independence of the legal profession is preserved and I believe that our proposals do that, but that is plainly something that, as the Bill goes through Parliament, people will want to be sure we have effectively delivered. Q127 Jeremy Wright: If I can take you back to Carter, you said, and I think you were right to say, that the Bar has given the first stage of Carter a cautious welcome, but, of course, the second stage will tell them how much money they are going to get, which is where they will really become interested. Lord Falconer of Thoroton: But they are quite interested in this bit. Q128 Jeremy Wright: Well, vaguely interested, I am sure. When the money bit comes into the forefront of our consideration will it be at the forefront of the Government's mind to look again at the balance between fees for senior counsel in the longer cases and fees for junior counsel in the shorter cases which, as you will know, is the concern primarily of the junior Bar? That is going to be another live issue, is it not, when Carter reports on the figures? Lord Falconer of Thoroton: These are the issues that Lord Carter has to deal with in broking with the Bar and the Law Society how the cake is divided, and the cake has a finite size which all the participants in the discussions know. You will recall that one of the foundation beginnings of the process was that in a sense very big cases are overpaid but there are some parts of the process where both solicitors and the Bar are underpaid and there needs to be a redistribution throughout the system in order for it to be a fairer system of payment. However, it is also important to remember that there is a sense - and this is borne out by the figures - that civil legal aid has gone down as well and there needs to be some money from the criminal legal aid payments taken and given to civil legal aid. You are absolutely right to say it is a difficult second bit that needs to be done and money does tend to focus people's minds but, having set out the principles, there is now a basis of agreement in principle which I think will make the second process easier. Alex Allan: One of the points in Lord Carter's first report is that for the revised graduated fee scheme for advocacy services the base fee should incorporate the majority of the ancillary payments that are currently made and a single advocate should take responsibility for all payment of the advocacy elements of the case, so in that sense looking towards giving options for rebalancing to the advocate who is accepting the single payment. Q129 Chairman: You will probably be aware that we had an evidence session with the Legal Services Commission about Specialist Support Services. Lord Falconer of Thoroton: Yes. Q130 Chairman: We are going to publish a report about that probably in ten days' to a fortnight's time, but you may have been made aware of the evidence session which did raise some quite interesting questions. Lord Falconer of Thoroton: I have read the evidence of Mr Harvey. Q131 Julie Morgan: Lord Chancellor, I am particularly concerned about the quality of legal advice that people receive in the future, especially those on legal aid, and the proposed withdrawal of the Specialist Support Services I think casts a real shadow over what quality of legal aid will be available. We received evidence last week, as the Chairman has said, from the Legal Services Commission and we were left feeling that this was definitely a step in the wrong direction. I wondered if you had had any consultation with the Legal Services Commission and whether there was any way this decision by the Legal Services Commission could be looked at again. Lord Falconer of Thoroton: First of all, as far as consultation is concerned, it was a decision made by the Legal Services Commission. The facts on the process plainly need to be looked at. Looking at the facts, it appears to be that the position was that from 2000 to 2004 there was a pilot scheme. In 2004 it was decided that the scheme would be rolled out across the country. Three-year contracts were then entered into which would have ended in, I think, the spring of 2007 or the middle of 2007. It appears that within eight or nine months of those contracts being entered into some sort of process then began which led to six months' notice being given under these contracts. Looking at those basic facts, I have a concern that, having piloted this, having then entered into three-year contracts, it is odd that a decision was then made or contemplated quite so quickly to stop the three-year contracts before the three years were up. It gives me cause for concern, that such a strange change occurred. Having said that, the position of the Legal Services Commission is that they want to try to focus as much civil legal aid as possible on the front line. They have a point when they say that if you go to a lawyer and then that lawyer goes to another lawyer you might be duplicating the cost of what the Legal Services Commission is paying for. If, for example, CLS Direct, which is the telephone service, can put you directly in touch with the specialist provider, that may ultimately be cheaper than going to one of their recognised lawyers who then rings up one of the specialist providers that you have been referring to. I do not think it is open and shut that this is the best way to provide the service but, as I say, I am very concerned about how the conclusion was reached that that was the right thing to do. Q132 Julie Morgan: I am sure you aware that there was an evaluation done of the service which said that it was very good, and it was decided that there should be mainstreaming of the Specialist Support Services. Lord Falconer of Thoroton: Yes, and that is what happened, as I understand it, and then the six months' notice was given, and I also noticed that Mr Harvey in his evidence said words to the effect that everybody who had been asked about the services said they were good and beneficial. I do not think, on the basis of the material that I have seen, that anybody could reach any other conclusion than that the specialist services were doing a good job and providing a useful service. That seems to me to be beyond argument. The only issue seems to me to be, is there some area of overlap? As I understand it, the issue is, could you get access to the specialist services without the need for another possibly cost-bearing legal provider intervening between the two? Q133 Julie Morgan: Certainly all the evidence given us by the front-line advisers, including many of the voluntary organisations, was that access to the Specialist Support Services saved an enormous amount of time and provided very good quality expert advice very quickly, which in fact has increased their ability to serve people. Lord Falconer of Thoroton: That seems to me to be completely beyond argument, that they obviously providing a very good service to the voluntary sector bodies. If you look at the list of who they are, even after you have confessed that your daughter works for one of them, they are high quality service providers, and I do not think anybody can dispute that. I did not understand Mr Harvey to be disputing that the quality of what they were doing was high and that they provided good quality advice to people who needed it. As I say, it appeared to me to be a value for money issue and, as I say, I am very concerned about the way it was done. Q134 Chairman: You have obviously had concerns about the process. The evidence that we have received clearly was equally concerned about the process but was even more sharply focused on the gap that might be left. When we publish our report, which will be as soon as we can get it turned round, may we take it that you will look both at the report itself and at the issues about the availability of specialist services? Lord Falconer of Thoroton: Your hearing has led to this being focused on as an issue. I do not know when you are going to publish your report but, irrespective of your report, it seems to me that (a) because of the process and (b) because the substance of the issue seems to me to be whether you can provide equivalent quality of service by some other means which might be cheaper, that needs to be considered, but I need to consider both those issues. I should say, without in any way seeking to discharge my own responsibility for this, and I have some responsibility for this because Ministers were aware it was going to happen before it happened, that it is an LSC decision, so it would need to involve consultation on my part with the LSC. It is not something where I can simply reverse the decision. Discussions will need to be had, but I undertake to the committee, irrespective of what might be said in your report, that I will look at it now both on process and on substance. Chairman: And the report we hope will be with you within about ten days to a fortnight. Q135 Keith Vaz: Lord Chancellor, the working relationship between the judiciary and the Government has changed dramatically since you have been in office. You have given away a huge number of powers to the Lord Chief Justice. There were grumbles from some parts of the judiciary about the way in which matters were being dealt with. Has that all settled down? Are you getting on with the judges now? Lord Falconer of Thoroton: Yes. I think there were grumbles. If you remember 12 June 2003 when the judges discovered that the Lord Chancellor was going to be abolished --- Q136 Keith Vaz: Lord Hope was at Edinburgh Airport. Lord Falconer of Thoroton: Some of them were apparently in transit at the time it happened. It was an unfortunate way to do it, I regret that it was done that way and it made for real difficulties. From where we are now I think there is a much, much better relationship with the judiciary. I think the judiciary have been constructive and extremely positive in the way that they contributed to the making of the new arrangements. I think as well, since the new arrangements have been constructed, senior members of the judiciary are involved in quite a number of executive processes. There is a judge on the executive board of the DCA, he sits as a non-executive, but he is a member of the board. There is a judge, again who sits as a non-executive, on Her Majesty's Court Service. I think the relationship between the judiciary and the state is now good and positive. I think it is, in large measure, a tribute to the judges but I also think the executive has now got a much steadier relationship with the judges than they might have had a year or two ago. Q137 Keith Vaz: One of the most significant changes that you have made has been the establishment of the Judicial Appointments Commission, although you continue to appoint judges until the commission has started its work. What is the current timetable for when they will take over this decision? Lord Falconer of Thoroton: The Judicial Appointments Commission will start to be involved in the appointments process from 3 April 2006. There is a Chief Executive of the Judicial Appointments Commission, there is a Chairman of the Judicial Appointments Commission and there are 14 other commissioners who have also been appointed. The system set up by the Constitutional Reform Act basically involves the Judicial Appointments Commission making a recommendation to the Lord Chancellor who has then got very, very limited powers to say no. The Judicial Appointments Commission from 3 April will basically appoint all judges where a new competition is involved. The Chairman of the Judicial Appointments Commission, the Lord Chief Justice and myself have agreed transitional provisions where I will continue to appoint judges where the competition was started some time ago and that will continue until at the latest the spring of next year. Every new competition that comes on-stream will then be the responsibility of the Judicial Appointments Commission. Q138 Keith Vaz: It is a fact, is it not, because we heard from your junior minister in the House today, that there will be at least 80 members of staff from the DCA being seconded to the new commission? Lord Falconer of Thoroton: That is correct. Q139 Keith Vaz: How independent can it be seen to be when so many of your own staff are going to be working for them? Lord Falconer of Thoroton: There is a lot of hard work that goes into the appointment of judges. We need a new way of doing it, there will be new leadership in the way that it is done from the commission. There also, inevitably, needs to be continuity. The actual processes, which are complicated and have built up over time, need to continue reliably. It is for the commission, as time goes on, to determine how they want to change that. I have absolutely no doubt whatsoever they will be totally independent. Q140 Keith Vaz: One of the things that you have done is increase the number of women and ethnic minority people on the bench between April 2004 and September last year. Of the appointments that you made 37% were women and 12% were from ethnic minorities, but when the commission takes over they are under no obligation to follow any of the statements or comments you made about diversity; they can basically do their own thing. Lord Falconer of Thoroton: They have got a statutory duty to widen the pool for those who apply to be judges. I have got absolutely no doubt that Baroness Prashar and her commission will be just as active and just as committed to increasing diversity as I and my predecessors have been. I referred to this committee before in relation to this. One of the points that makes a real difference in relation to increasing diversity is that there is a will on the appointer to do it, and I am quite sure the commission have that will, but it is more than just having will, you also need to do things, both to widen the pool and to convince people who would not otherwise apply that they have got a prospect of getting an appointment if they do apply. Q141 Keith Vaz: You were on the radio a few days ago concerning the right of the Prince of Wales to speak out on controversial issues from the political agenda. Does he have the right to do this? Lord Falconer of Thoroton: What I said on the radio was that the Prince of Wales is plainly entitled to have views on things and to express those views. Examples I gave were rural affairs, the environment, the Armed Forces and architecture. The monarch and I think the Prince of Wales cannot get involved in party politics. The fact that the views that they express might coincide with a view expressed by a political party does not make those views political views. Examples of that are the things the Prince's Trust have done where they have made a number of innovative proposals which have been adopted by them, for example, getting unemployed into work, helping with youth unemployment. They have been adopted in some cases by both political parties; that does not make them political. Q142 Keith Vaz: In answer to James Naughtie you mentioned environmental issues and basically cows and buildings, non-controversial issues. Lord Falconer of Thoroton: I am not sure about that. Q143 Keith Vaz: If the Prince of Wales made a comment about the A&E at Windsor General Hospital, that would be "crossing the line", in your words. He is not supposed to cross the line but you finished that by saying, "I do not think he does". Lord Falconer of Thoroton: I do not think he does and I do not think the fact that you talked about health or education - because he has also talked about education - would necessarily mean that you were crossing the line. I think if he said something about a specifically party political issue, as it were, espousing one party political side against another, that would be inappropriate, but, as I say, I do not think he has done that. Q144 Keith Vaz: Alex Allan, you have obviously got the best team that you can possibly have in your department. You choose them on the basis of merit, is that right? Alex Allan: Yes. Q145 Keith Vaz: Why do you need to spend £9 million on outside consultants? Alex Allan: They are employed on a number of specific projects. One of them, for example, was when we launched the consumer strategy, when we decided that we needed to have much more information about consumers in the courts, what sort of service we were providing and what sort of service consumers wanted, we employed consultants on that, for example. Another one was looking at how we could improve our enforcement programme. We employed consultants to advise us on how we could achieve our objective of stepping up the level particularly of fine enforcement. Q146 Keith Vaz: What are your civil servants doing? In 1997 your department only spent £700,000. From £700,000 you now spend £9 million and you pay one consultant £2,100 per day. Who is this? Is this Karl Rove? Alex Allan: As I say, these consultants, where we have employed them, are aimed at specific business areas. They are aimed at improving the way we do it, in many cases improving our value for money. Q147 Keith Vaz: Who could be worth £2,100 a day? Alex Allan: I cannot reveal the individual but the project on which he is engaged is one looking at how we manage all the finances in the DCA, including something like £6 billion we have under management, whether it is in the Court Funds Office or held in trust for various vulnerable people. Q148 Keith Vaz: That is more than we pay the Lord Chancellor and he appoints all the judges, he has a huge budget. Alex Allan: We paid what we believed was the market rate for the skills we needed. Q149 Keith Vaz: Is this gentleman or lady still being paid £2,100 per day and can anyone apply for this job? Alex Allan: The appointment was made through the competitive process. Q150 Keith Vaz: One final question about the Supreme Court building. It is rather sad to see the Supreme Court Justices wandering around the Strangers' Dining Room together having their lunch without a building of their own. When are we going to give them their building? Lord Falconer of Thoroton: We have identified the building: it is Middlesex Guildhall. Detailed work is going on at the moment to make sure it is a building fit for a Supreme Court and that detailed work will produce a precise series of dates when it is going to happen and I am absolutely sure there will be a first class dining room as well. Q151 Chairman: That is nothing new since the last time you came to see us because that is what you told us then. Lord Falconer of Thoroton: Quite a lot has happened since then but could I be excused from saying precisely what the dates and the times are and where we have got to with various other matters as well in relation to that until a later date? Keith Vaz: Maybe you should appoint a consultant to look into this. Chairman: Heaven forbid. Let us turn to a not unrelated matter, Mr Tyrie? Q152 Mr Tyrie: On the House of Lords reform, the Government plans to take forward reform by way of a joint committee. When will that be appointed? When will the nominations be made? Do you have in mind a timetable for consultation? Lord Falconer of Thoroton: There are two bits to this. First of all, we said in our manifesto a variety of things, one of which was that there would be a joint committee to look at the conventions governing the relationship between the House of Lords and the House of Commons. We have put detailed proposals through the usual channels and the usual channels are discussing it at the moment, and I hope that they will come to a conclusion as quickly as possible in relation to that. Secondly, we have said there should be a free vote on composition after the Joint Committee on the Conventions has reported and that will be some time during the course of this year. We have also made it clear - indeed, I made it clear over the weekend - that it would be very worthwhile, particularly in the light of the things that have been said from the Conservative Party, to see whether or not we could build a consensus on Lords reform. I do not think anybody wants Lords reform to take up two whole sessions of Parliament. If it were possible for there to be a consensus across the political parties about what the reform should consist of that would be a very good thing to achieve and I think it would increase confidence in our parliamentary institutions. In addition to the Joint Committee on the Conventions, we are also trying to look for a consensus across the political parties. Q153 Chairman: Has the Prime Minister left you enough room to manoeuvre to achieve such a consensus? Lord Falconer of Thoroton: As I think I also indicated over the weekend, there needs to be room to manoeuvre in relation to it. I think one would find there was more agreement than disagreement on quite a lot of the important issues. The answer is yes. Q154 Mr Tyrie: I will come back to that in just a moment. I want to clarify, first of all, this timetable. You said that you hoped to complete these discussions behind the scenes as quickly as possible. Lord Falconer of Thoroton: I did not manage to do that but I want them to start. I have written today and I hope that we can get them going and make progress as quickly as possible. Q155 Mr Tyrie: What is "as quickly as possible"? In other words, when do you have in mind that we are going to get some progress on the joint committee? Lord Falconer of Thoroton: You keep putting the joint committee and the consensus discussions together. The joint committee is looking at the conventions governing the relationship between the Commons and the Lords. The consensus discussions that I talked about are much more to see can you reach agreement cross-party on the way the Lords should be reformed, which is a much wider issue than simply what are the conventions currently that govern the relationship between the Lords and the Commons. Q156 Mr Tyrie: I accept that point but I am trying to get a feel for the timetable of this joint committee and I have not heard anything that is giving me a clear understanding of that. Lord Falconer of Thoroton: This has been discussed between the usual channels and the usual channels are trying to reach agreement across the three parties on the Joint Committee on the Conventions governing the relationship between the Lords and the Commons. I should say we are pressing it as hard as we possibly can in relation to it. We have been slightly held up by various things that have happened in the other parties, for example, changes in leadership, but I hope it can happen as quickly as possible. Q157 Mr Tyrie: There is, of course, the risk that it could happen in your party before long as well and then we will be held up again. Lord Falconer of Thoroton: Andrew, although you responded in a rather sharp way, I was not in any way trying to make a political point about it; I was simply trying to retell the facts in relation to it. Q158 Mr Tyrie: I was responding to what I was hearing. Can I get back to this consensus point? What do you think a consensus is likely to be? I ask you that not in order to look into the crystal ball but by reading the book and bearing in mind the votes that we have had in the House of Commons. If I may ask you a leading question, would you say it is more likely than not that the consensus will lie in a House that is part elected and part appointed given that the proposal that was most vigorously rejected was a wholly appointed House when it was last put to the Commons? Lord Falconer of Thoroton: Just looking at the votes in 2003, it seems to me inconceivable that the consensus could be anything other than some sort of hybrid House. Q159 Mr Tyrie: Do you not find that is going to sit rather incongruously with what the Prime Minister himself said about the hybrid House when he said, "I personally think that a hybrid between election and appointment is wrong and will not work"? Lord Falconer of Thoroton: What the position is, is that if we could get a consensus, if there was broad agreement that a hybrid House was the right way forward - and I do not know whether we could, or whether we will or we will not - then the position is that the Government will go along with that. Q160 Mr Tyrie: You must have discussed this with the Prime Minister and you clearly will not disclose exactly what those discussions were but it does seem pretty extraordinary that the Prime Minister himself has ruled out an option on the grounds that it is unworkable and you are now suggesting - and indeed you have more or less made it clear in the exchange that we have just had - that that is exactly what any consensus is likely to throw up. Lord Falconer of Thoroton: What I am saying is the right way forward on Lords reform is that if there is a consensus let us harvest the consensus and make the reform. I am saying as well, and it is from the Chairman's first question, is that a consensus that senior members of the Government could sign up to? Answer, yes it is, there is a consensus there but I do not know what will happen in these discussions. Q161 Mr Tyrie: There do seem to be quite a number of views coming out of the Government on all of this. Baroness Amos, who is Leader in the Lords, has expressed a very clear view on this only recently. I do not know whether you know this. Lord Falconer of Thoroton: Is this the Glasgow Herald interview? Q162 Mr Tyrie: Yes, in which she said that she favours halving the size of the House of Lords and the introduction of 80% elected and 20% appointed. Is it now open season within the Government's expression of views? We have a Prime Minister whose views are going to be set aside by you, although you are not going to describe it as that, in seeking this consensus. You have got a Leader in the Lords expressing a very clear view about the direction of reform before the joint committee has reported. I will come on to what Lord Carter said this morning in a seminar, if I need to, in just a moment. Lord Falconer of Thoroton: It is an area, is it not, where for a very long time, certainly since the manifesto and the general election, it has been a free vote issue? Therefore, you would expect members of political parties within the same political party to have different views. That is why the consensus building process is something that is worthwhile to do because you might well discover that although there were disagreements on the margins, on the question of what the main elements of reform should be, should it be hybrid, for example, should the primacy of the Commons be preserved, there would be broad agreement. Q163 Mr Tyrie: The good news that I took from your interview was --- Lord Falconer of Thoroton: Was there bad news as well? Q164 Mr Tyrie: I think the bad news is that the Government is at sixes and sevens on this but it is kind of you to ask me some questions. The good news is that you appear to be saying that you want to bring composition and powers back together again if you can find a consensus for them whereas the previous approach, and the one that was articulated this morning by Lord Carter, is that your manifesto commitment enables you to go ahead with one of those without the other, indeed the commitment to democracy has effectively been dropped, and those were his remarks this morning. Could you clarify where you stand on that point? Lord Falconer of Thoroton: In terms of the consensus building, the consensus would have to be on both powers and composition because I think the two go together, though you need to look at both to reach a conclusion. You are not going to have a consensus if there is disagreement on one or other of those two issues. The consensus I seek to build is one that covers both of those issues, as I think it has to. Q165 Chairman: On constitutional issues, a couple of further points: have you any initial response to the report being produced by the group chaired by Baroness Kennedy on the broad constitutional and parliamentary issues? Lord Falconer of Thoroton: I think it was a very important and very timely report. I think we do need to consider very, very carefully the recommendations that she is making. Obviously, we do not agree with every single one of them. For example, we had indicated that whilst we would come back to the issue of votes at 16 that might not be something for immediate implementation. The points he is making about the need for there to be more democratic engagement seem to me to be broadly right. The question is how, and she has got 30 recommendations and I think we need to consider them very carefully. Q166 Chairman: Are you going to make some kind of structured response at some stage? Lord Falconer of Thoroton: We will definitely make a structured response - and this is not a matter for me but it is obviously subject to the usual channels - and it is plainly something which, certainly speaking for the House of Lords, we should, subject to the usual channels agreeing, think about having a proper debate about as early as possible because I think a lot of people who engage in democratic politics would agree very strongly with the identification of the problem. The question is how we gather round a number of solutions. Q167 Mr Tyrie: That was a very helpful and constructive reply and my heart is warmed by it. Lord Falconer of Thoroton: I am very glad you are keeping us fully informed as to your feelings throughout. If there are any more medical bulletins ----- Q168 Mr Tyrie: I am glad that the Government is picking up the report on its many views on this subject. You did say just a moment ago, which I thought was very interesting, that you are definitely going to go ahead with a free vote on composition before the end of the year. Lord Falconer of Thoroton: Yes. Mr Tyrie: Are you going to make any effort to guide how that vote should be conducted in terms of options, because what went wrong last time was that we just had this plethora of options which ended up ----- Q169 Chairman: I hear a preferential system. Lord Falconer of Thoroton: There are two things to say on that. Yes, obviously, there needs to be some way to work out, and I think it is much more for the Commons to work this out than anybody else, what it is that people actually genuinely want to vote on and how you can ensure that you structure the vote in such a way not that you get a particular answer but that you get the questions that people in the House of Commons actually want answered. It has to be sufficiently clear what people are voting on and I suspect there have to be maybe fewer questions than there were previously. Q170 Mr Tyrie: Can I suggest four votes: wholly appointed, wholly elected, largely elected, largely appointed, and leave it for a committee to define exactly what they mean subsequently? You can have a huge influence on this if you want to. Lord Falconer of Thoroton: I note what you say in relation to all that. The other point I was going to make was that it is a free vote, as we have said, but if a consensus emerged then no doubt we would give an indication of what we thought at that point. Q171 Chairman: While we are talking about voting systems, your department has been beavering away on voting systems for ages. In July 2005 Harriet Harman said, "We were reviewing those systems and officials in my department are doing desk research". When is this PhD going to be published? Lord Falconer of Thoroton: I cannot give you a precise date as to where we are but the work continues. This is the review on how the various electoral systems throughout the country work or are operated and the work is going on in my department. Q172 Chairman: Is this a process that has a next stage? At one stage it was said that there was going to be some public consultation at the end of this. Lord Falconer of Thoroton: It is work being done internally within the department by officials looking at how the various systems work. Q173 Chairman: But there are books and theses written on all this. Lord Falconer of Thoroton: So many books and theses are there that it has taken a very long time to go through all these books. Q174 Chairman: No consultants are involved? Lord Falconer of Thoroton: No consultants, no. It has been done by my excellent officials. Chairman: We await a report without much eager anticipation at the moment, but let us turn to another problem. Q175 Jeremy Wright: Lord Chancellor, can I bring you to the question of extraordinary rendition and first of all ask you this? Are you satisfied now as to the facts of whether extraordinary rendition has happened in this country and, if it has, how often? Lord Falconer of Thoroton: I have the facts as stated by the Foreign and Commonwealth Office, various statements made by Jack Straw about it, which I accept. Q176 Jeremy Wright: What do you think the duty of the Government is so far as extraordinary rendition is concerned? What I mean by that is how active a duty do you think the Government has to investigate whether or not this has happened? Lord Falconer of Thoroton: We are a signatory to the Torture Convention. Article 12, I think it is, of the Torture Convention requires a signatory of it to investigate through the competent authority where they believe that torture or something associated with it - those are not the exact words - might be taking place. The competent authority would plainly be the police in these circumstances. That is our obligation. If there were a reason for us to believe that rendition through this country was taking place, and by extraordinary rendition I mean people being rendered to another country for the purposes of torturing them, we would have an obligation to investigate it and stop it in so far as it was happening in this country. Jack has set out what the position is in some detail. He has thoroughly looked into what the position is and I accept what he says in relation to it. Q177 Jeremy Wright: But you are, of course, a Minister with direct responsibility in this area, are you not, in relation to human rights and to inhuman and degrading treatment, it therefore follows, so you would want to be satisfied yourself, would you not, that every potential incident of extraordinary rendition had been properly investigated? That must follow. Lord Falconer of Thoroton: Indeed. Q178 Jeremy Wright: And it is right, is it not, that you have seen, as we have all seen in the press, specific allegations particularly of American flights coming into this country? Again, just to be clear, are you satisfied on a personal level that each of those alleged incidents has been fully investigated by the police or by other agencies? Lord Falconer of Thoroton: I cannot say for sure that I have looked at every single allegation that has been made because I do not know the range of allegations that have been made. I am responsible for human rights policy in the Government. That is a different role from being a police officer in relation to extraordinary rendition. If a government department, for example, is responsible for sex or race discrimination within the Government, that does to mean that that particular government minister becomes a police officer responsible for going round every single department and investigating every single incident, and indeed it would be both wrong and an ineffective way of preventing the sorts of things to which you are referring to make the relevant minister a police officer. I regard myself as having a responsibility in this respect. Equally, I am part of a Government where there is mutual trust and confidence between myself and the Foreign Secretary and between my department and the FCO. Q179 Chairman: There is a Lords division now and I will not adjourn the committee in the Lord Chancellor's absence because I would like to ask Alex Allan a question, which is that we are in discussion with you about your spring supplementary estimates. Alex Allan: Indeed, yes. Q180 Chairman: You have kindly written to us and have responded in detail on some points, indicating that the present state of your financial systems does not enable you to tell us about the link between estimate allocation and PSA delivery. Why? Alex Allan: There are two points on that. First of all, in the process of changing our financial systems we will make sure that the relevant coding is introduced so that we can answer that question. The second is that it is actually quite a difficult conceptual issue because, for example, we have a PSA target dealing with increasing the number of offences brought to justice. We have another PSA target dealing with reducing the number of ineffective trials, trials that are aborted for one reason or another. We have another PSA target dealing with confidence in the criminal justice system. It is conceptually quite difficult when, for example, there is an increase in the funding going towards the Court Service, to say that a specific bit of funding to the Court Service is designed, for instance, if we are funding what is happening at the particular crown court, which of those three different PSAs it should be ascribed to. Clearly, there are some specific projects, and we do some very targeted work on reducing ineffective trials and that can clearly be ascribed to a particular PSA, but in many other cases it is conceptually quite difficult. There are also, of course, other areas which are not at the moment covered by any PSA targets. Not all bits of all departments' work are. We do not at the moment have a PSA target in relation to our work on electoral reform, and by that I mean electoral administration. That is something we are looking at for the next spending round so that we can introduce one that sensibly measures our performance. Q181 Chairman: It sounds like a significant slip there. What you were being asked in that area suggested that you are not working to a PSA target on your desk work on electoral reform. Alex Allan: There is not a PSA target on that. Q182 Chairman: No, I know there is not. You imply in your letter that the systems are going to be changed in such a way that you will be able to be a lot more illuminating to us in the future. Alex Allan: I hope so. When I was preparing for coming to this committee I was asking my officials how we would do that. I think in some cases it may be that we can only give an illustration of the areas or that particular spending will support a number of different PSAs. I do not think it will be able to say absolutely tidily, "This much money goes to that PSA", "This much money goes to that PSA". I think it will be slightly more blurred than that, but we certainly will endeavour to produce the information in as much detail as we can and in a way that is most helpful to you. Q183 Keith Vaz: The last time you came before the committee, Alex Allan, you said that you would be attending a feedback session for those who had not been successful in getting a judicial appointment. Have you done that? Alex Allan: I do not believe I said that. I have since the last committee session continued to make further inquiries about our systems of feedback. As I said last time and as I think we followed up in the letter we sent, as a matter of course we do not nowadays give oral feedback to all candidates. We offer written feedback to all candidates and I have looked at samples of written feedback so that I can understand what is being done. We also provide opportunities for people where at certain events it is possible for them to come in, produce their written feedback, discuss with one of the assessors the sorts of points that have arisen and how they might improve their performance and might succeed in a subsequent competition. Q184 Keith Vaz: When did you change the policy of giving oral feedback, because certainly when I last looked at the form concerning people who apply for judicial appointments, if you go on to your own DCA website you have in the past given people the opportunity of an oral feedback. When did that change? Alex Allan: It changed certainly before my last appearance before the committee, if not before the one before, because I certainly explained then that we did not any more offer oral feedback as a matter of course, and this was largely because we found that providing written feedback was normally more effective. It enabled us to be more comprehensive and clearer and that is the procedure we have now followed for at least a year. Q185 Keith Vaz: So have you drawn any lessons from the process that you have looked at which would be helpful to the new Judicial Appointments Commission, bearing in mind that 80 members of your staff will be going to work for them? Alex Allan: This is certainly one of the things we will be discussing with Baroness Prashar and the other commissioners, and, of course, as you imply, it will be for them to discuss what feedback they provide for the competitions that they initiate. As the Lord Chancellor explained, there is still a number of competitions in train which are shortly to finish. Q186 Keith Vaz: How many competitions are in train at the moment? Alex Allan: I can give you that information. There was a list published in a written ministerial statement that the Lord Chancellor gave. There is a fee-paid immigration judge of the Asylum and Immigration Tribunal, a deputy district judge Magistrates Court competition, a recorder competition for the South East Circuit, a specialist Chancery judge for the Midlands Circuit, a specialist mercantile judge for the Midlands Circuit, and lay members for the Mental Health Review Tribunal. Q187 Keith Vaz: So that will be completed by the Lord Chancellor? That will not be handed over because the competition has begun? Alex Allan: Those are the ones that have begun. We will clearly involve Baroness Prashar to make sure we take her through the processes but those are the ones which I think are expected to be completed before July 2006. Q188 Chairman: Just before we leave the judicial appointments could I ask if you could throw any light on the situation when you appoint magistrates? You have just mentioned the appointment of what we used to call a stipendiary magistrate but it does appear that there is some major hiatus in the system for appointing magistrates which is not at present due to be handed over to the Judicial Appointments Commission and that in some areas the advisory committees, which have traditionally had a key role in this, are themselves now reduced to two or three members because appointments to the advisory committees have not been made pending some other decisions. What is actually happening? Alex Allan: I was not aware of the point about appointments to the advisory committees and certainly we do still, and will for a little time, rely upon advisory committees to make the appointments. I will investigate that. I did not know that point. Q189 Chairman: Has the Government got any timetable in view for the eventual accommodation of magistracy appointments within the Judicial Appointments Commission? Alex Allan: I do not believe a specific timetable has been set, but if there has been more information I will let you know. Q190 Jeremy Wright: I was going to ask you about Gershon targets and if you could tell us a little bit about the department's progress towards the targets you have been set under Gershon. I appreciate, of course, that there is no such thing as an interim target for Gershon officially, but did the department set internally interim targets and, if so, are they being met? Alex Allan: With regard to the Gershon targets for the DCA, it may help if I split them into two different areas. The Committee suspended between 5.10 pm and 5.25 pm for a division in the House Q191 Chairman: What I think we will do is resume, but because the person who was asking the questions a moment ago has not yet returned from the division we will move to another area, which is freedom of information. A number of things have been said by you, Lord Chancellor, about fees. Are you reviewing the fee regulations? Are you planning a review, or is this something that was a way of dealing with issues that have been raised with you? Lord Falconer of Thoroton: We always said that we would look at the fees because we have introduced a regime that basically does not charge for providing information under the Freedom of Information Act. What it does is set a limit by reference to time, which is £600 in central government and £450 outside central government. There are issues about the extent to which some things that are not currently included in that £600 should be included. For example, people have adopted the technique of getting a list of files under the Freedom of Information Act, then asking for all of the contents of the file. That, before it can be released, plainly requires somebody to read the file, which does not seem to me to be legitimate. The time it takes for a civil servant to read the file is not included in the time it takes you to get to the £600 limit. Various government departments are now having to employ people specially to read files to see whether or not any provisions of the Freedom of Information Act would affect whether it should be disclosed or not. The sort of question we need to look at is, for example, should the reading of the file be included in the fee. Q192 Chairman: Is this just an accounting question so that, for example, journalists who pursue inquiries of a very detailed kind, their newspapers might well be prepared to pay that amount of money and the department's budget would be that little bit less in difficulty, or is it a deterrent to an ordinary member of the public who is pursuing a genuine case on a purely personal basis with no financial backing? Lord Falconer of Thoroton: We do not want it to be a deterrent to members of the public who want to exercise their rights under freedom of information. We set a limit of £600 because there has to be a balance between providing freedom of information as freely as possible and the time it takes the state to find that information. Has the balance been put in the right place? I do not think £600 is the wrong figure, but is what is included right or not? It is not a question of trying to deter the public. We are not seeking to do that; we are simply seeking to get the balance right. If lots of time was required to do reading, for example, for work that a newspaper, a magazine or a film company was doing, this does not exclude the right for them to pay for it if it is over £600, and that is the accounting aspect you referred to, but that will not cover every case. Q193 Chairman: Is the danger not that you will produce a rule which would not deter, perhaps should not deter, legitimate inquiries by well‑funded newspapers, but would actually deter the person with a genuine case for whom it does require effort to go through the files and find out why he or his father or whoever was badly done to many years before? Lord Falconer of Thoroton: Yes, and indeed it is that sort of issue that one needs to look at in considering the question, "Should you include the cost of reading the file?". There are two sorts of case, the one you rightly described, and the other is, "Oh, let us just get them to go through all of the files, give a separate request each time; something interesting may turn up". Q194 Chairman: Is there a review? Lord Falconer of Thoroton: We are looking at what we should do about fees at the moment and we will reach a conclusion, I think, fairly soon in relation to that. Chairman: I think we could now return to Mr Wright's question to the Lord Chancellor. Q195 Jeremy Wright: We were talking about extraordinary rendition and particularly how active a duty it is for the Government to investigate alleged cases. You made the perfectly fair point that if you compare it with other examples in other fields where it would be unrealistic for the Government itself to investigate every single alleged incident it would be impractical for you to do so in this case also. Is the substantive difference not that there are, in fact, relatively few specific allegations of extraordinary rendition and that therefore it is easier to investigate each of them? In particular, to give you an example, there was a case of which we are aware reported in The Independent where there were allegations of American planes bringing people through this country and using four specific airports, two of which are in Scotland. We understand from the Committee on Human Rights that their investigations revealed that the Scottish police have been making no investigations about flights travelling into and out of Scottish airports of this nature. Presumably you would be very concerned to ensure that those sorts of incidents, where they are raised in the press, where there are specific allegations made and they are certainly capable of investigation, are properly investigated? Lord Falconer of Thoroton: Yes, but it is for the police to decide whether or not that threshold has been reached. I would not think it appropriate to say that every time an allegation is made in the press of a particular wrongdoing or of extraordinary rendition the police are then obliged to investigate it. Plainly it is a matter for them as to whether or not they investigate it. I understand that in relation to one case the Manchester police were approached and what they said was, "If you produce material that suggests some wrongdoing is going on, we would then investigate it". It seems to me that is the right approach. What you cannot have, it seems to me, because it will not lead to the right results, is a politician becoming a police officer. It is for the police to perform that role and it is for them to decide whether or not the threshold has been crossed. Q196 Jeremy Wright: Finally, can I ask you this: are you satisfied that this is not happening any more? Lord Falconer of Thoroton: What Jack has said in his statement is that four requests were made; two of them were granted, this was in the mid to late 1990s. I do not think it necessarily follows from the fact that those facts occurred that there was rendition for the purpose of torture. I do not know what the answer to that is. On the basis that the United States Government always asked in the past, on the basis they had given assurances, I accept that it is not happening. Q197 Mr Tyrie: When those assurances were given did you or the Government ask the US Administration what the basis was for their definition of torture and their definition of the likelihood of torture? Lord Falconer of Thoroton: The assurances that were given were given in the context of people transiting through this country and assurances were given in the context of there only having been the cases to which the Foreign Secretary gave a response, so the question that you ask does not arise. Q198 Mr Tyrie: Let me put it in a more general way. I think I will have to look back at the transcript to see if I understood your reply. Lord Falconer of Thoroton: What I am trying to say is: are people being rendered through this country? Answer: we asked on four occasions, those are the only cases. I think that is the effect of what Jack has said. Your question was: does torture mean something different to the Americans than what it means to us? Q199 Mr Tyrie: Are you aware of that difference? Lord Falconer of Thoroton: Yes, I have seen statements made on behalf of various parts of the United States of America that describe various practices which we would plainly regard as being a breach of Article 3. Q200 Mr Tyrie: What about the definition of the likelihood of torture, that is, whether or not someone may be tortured? The UK Government talks about a substantial risk of torture or a real risk of torture, whereas the American Administration, when asked about this, provides a different definition. Are you aware of that distinction? Lord Falconer of Thoroton: You have got to give some context to that question. Q201 Mr Tyrie: When asked, the chief legal adviser or a chief legal counsel, for example, to the US State Department said that their definition of whether or not there is a real risk someone is going to be tortured is that it is more likely than not they are going to be tortured, therefore more than a 50% chance that they would be tortured. If it is less than a 50% chance, they feel that they are not in breach if nonetheless they render someone. Lord Falconer of Thoroton: That is the Americans rendering somebody out of the United States of America to another country. Q202 Mr Tyrie: If I may say so, I am a little bit worried that you are not fully aware of this debate and this argument that is going on at the moment, which is of considerable concern to international lawyers and indeed to all of those who may be caught up in rendition. You are not aware of that debate? Lord Falconer of Thoroton: You are asking me questions about what is the burden of proof for the risk of torture. What you are not saying is in what context is one looking at whether or not the threshold has been passed. Q203 Mr Tyrie: What do you mean by "in what context"? Lord Falconer of Thoroton: The
threshold that we normally look at is in the context of Article 3 of the
European Convention when we are considering whether or not we are going to
deport somebody from this country to another country, and we accept the burden
of proof laid down in the Jahal
case. What I am unclear about from your
questions, Q204 Mr Tyrie: When we allow a US rendition through this country, and there have been several by the United States ----- Lord Falconer of Thoroton: To where? Q205 Mr Tyrie: To a country which they have announced to us is a country where historically there has been a risk of torture. Lord Falconer of Thoroton: The allegations of extraordinary rendition, as I understand them, are about people being delivered to countries where there are American installations. That is the allegation, is it not? Chairman: It is broader than that. Q206 Mr Tyrie: I am extremely perturbed that you replied like that. On the contrary, the majority of renditions are cases where people are transported from US bases to places where they may be tortured. Lord Falconer of Thoroton: As I understand the allegations ----- Mr Tyrie: Among those are Egypt and Syria and a number of other countries in the Middle East and former Soviet Asia. The question that I am asking you ----- Chairman: One voice at a time. Perhaps if you let Mr Tyrie complete his question, then I will have silence so that it can be answered. Q207 Mr Tyrie: Perhaps we can just arrive at the key point because I am very concerned that you do not seem to be completely on top of the legal position. The greatest single concern is that the UK definition of the likelihood of torture, to which I have just been referring, that would be applied to our own deportations and the definition of the real risk of torture is not the definition that is being applied to US renditions through this country. The question I have for you is whether or not you are confident that when those renditions have taken place and when any future renditions may take place the US Government is fully aware that it must obey and abide by the UK definition of Article 3. Lord Falconer of Thoroton: Of course, when it comes through our country it has got to be our law, but that was not the question you were previously asking. Q208 Mr Tyrie: I am asking it now. Lord Falconer of Thoroton: Of course it has got to be UK law. Chairman: That seems to be a straight answer. Q209 Mr Tyrie: And the US Government has been made aware? Lord Falconer of Thoroton: Of course they know that, yes. Q210 Mr Tyrie: What action are we going to take if we discover that they are in breach? Lord Falconer of Thoroton: We will not allow it. We have made that clear. Q211 Mr Khabra: I have in my constituency casework on English asylum cases, and in my personal experience I believe that the Home Office immigration system is failing to tackle the problem. As you know, recently Mr Justice Hodge gave evidence to the Home Affairs committee for its inquiry into immigration control and referred to the longstanding problem of backlogs in asylum and the immigration system. He said there are about 47,000 cases awaiting hearing and also he estimated that it would take up to spring 2007 to clear the backlog. Can I also remind you that when you gave evidence to the committee in October 2005 you accepted that there were problems with a backlog of immigration appeals. To quote you: "There was always a backlog in relation to immigration cases. I do not think the abolition of one tier alone was ever going to deal - this is immigration as opposed to asylum cases - with that. They need to work their way through it." Could I ask you what progress has been made in relation to the acknowledged backlog of immigration appeals since your last appearance before the committee? Lord Falconer of Thoroton: As you rightly quote me in saying, removing one tier is not going to get rid of the backlog by itself, and indeed setting up a new asylum and immigration tribunal has had the effect of bringing out of the previous system a number of cases that had got lost in the woodwork, and therefore there are quite a lot of extra cases that got flushed out in the change. We need to do things about the backlog. The things that we are doing are that we are appointing 100 extra judges or adjudicators to seek to deal with the backlog, we are working closely with UK Visas and the Home Office to streamline the entry clearance process because entry clearance appeals are one of the big areas where there is a problem. We are also seeking to introduce a new points-based system by the new Bill that is going through Parliament at the moment, but that will not come on stream for some time, so it is basically extra judges and a streamlined entry clearance process. Q212 Mr Khabra: What is your estimation with the introduction of the new Bill? Will it take a year, two years or two and a half years to clear the backlog? Lord Falconer of Thoroton: It is difficult to say. I think there are something like 88,000 cases at the moment waiting to be dealt with. I think they are dealing with more cases now than are coming on stream. I cannot give an estimate of how long it would take to deal with the backlog, but gradually the backlog is going down. Q213 Mr Khabra: You will accept that the new migration into the country is a big problem; it is another problem. I do not know whether or not the new Bill, whatever the new Bill will be, will be able to control migration into the country which is still happening - illegal, legal, overstayers. This is a big issue. Lord Falconer of Thoroton: The new Bill will help to some extent, I think, in that respect, but obviously it is not a complete solution to all the problems of both illegal and legal immigration. Q214 Mr Khabra: Do you accept that this backlog of immigration appeals is caused by the drive to hear asylum appeals quickly because, as you know, there are two problems: one is ordinary immigration appeals, the other one is asylum appeals. Through my experience more and more people are still coming to seek asylum in the country. How do you consider taking action to balance two different problems? Lord Falconer of Thoroton: Part of that problem is that the number of asylum appeals is going down because the number of people seeking asylum is going down, so to some extent that problem rights itself. You are absolutely right: asylum appeals have been given priority over a period of time and that has had the impact of pushing certain sorts of immigration appeals lower down the process, but as the asylum appeals go down hopefully that position will equalise. Q215 Mr Khabra: There is another problem. As you know, the legal aid changes have taken place and they are going to cause problems for individual applicants, those who are in the country who wish to make representation, legal representation, whatever is possible for them under the given system. The statistics suggest that the number of appeals and reconsiderations is not going to go down, but legal aid changes have meant that the applicants simply go ahead unrepresented, they are not being represented by anybody, the money is not available, they cannot afford it. What assessment have you made of the number of applicants who are appealing unrepresented? Lord Falconer of Thoroton: I do not know what the number of applicants who are appealing who are unrepresented is, but the effect ----- Q216 Chairman: There is another division in the Lords. Lord Falconer of Thoroton: Excuse me. Chairman: We will take the
opportunity to allow Mr Wright to finish questioning Q217 Jeremy Wright: I think I had finished asking the question, and I think you were in the process of answering it. Alex Allan: You were asking about efficiency and progress on the Gershon targets and I think I had started to say that in some ways, if you look at the Department for Constitutional Affairs as a whole, there are two key areas in our efficiency targets. One is on legal aid and the other is on the administrative work in particular in the Court Service. On legal aid, I have to say that we are behind where we had hoped to be earlier. Understanding the processes and trying to work out how to get greater efficiency and procurement of legal services has been difficult. One of the ways that we have now done it is to set up Lord Carter's review and I am now confident that we have got the way forward that will produce the efficiency savings that Gershon was looking for. If you looked at a trajectory, are we halfway up the ladder, no, but I do believe that the interim report of the Carter review and the final report will show a convincing way in which we are going to deliver the efficiency savings. On the Court Service, I am confident that we will deliver efficiency savings. We have got a significant programme of work going on looking at how we can do that. We have just had published, about ten days ago, and I think it was sent to the committee, the business strategy for Her Majesty's Court Service which details a number of ways in which the processes will be made more efficient and how we can improve services to the public at the same time as reducing costs, and so I am very confident on that side of the account that we will deliver the efficiencies that we promised. Q218 Jeremy Wright: Just in terms of the process of analysing your progress towards the targets, are there interim targets which you impose internally? Is that something that the Civil Service does generally or is it something that you do specifically in this department? Alex Allan: I do not know the answer about other departments. Certainly we do monitor where we are on a trajectory towards the targets that Gershon set for the future. That is clearly important because it would not be prudent management simply to ignore it till the last year and say, "Oops! We have suddenly got to deliver whatever it is in efficiency savings this year", so certainly we look at how we are doing towards the efficiency targets. In some ways it is still early days for Her Majesty's Court Service and they have been in operation less than a year, but I am confident that the business plan and the work we are now doing to take forward those sorts of reforms will produce the efficiency savings. Q219 Chairman: I wonder if Alex Allan could help us with a question which arises also out of the freedom of information list, which is on the issue of the census. You will know that 130 Members of Parliament have signed a motion about the 1911 census, which, of course, in a few years' time will become available, but under the Freedom of Information Act, of course, it can be applied for and the department would be free to release that information under the Act but has so far very firmly insisted that it should not do so. What are the policy considerations which lead to this decision and how compelling are they? Alex Allan: The 1911 census in some ways is something of an anomaly in the process in that there is a clear process for ensuring closure for a hundred years for censuses after that, so that the 1921 census and thereafter are all statutorily protected for a hundred years. The 1911 census in that sense is an orphan. It is a very clear policy that a hundred years is the appropriate period for encouraging people to believe that the information they give out, very personal information in some cases, will be protected throughout their lifetime, and so that is something that as a matter of policy we wish to maintain. It is an anomaly, as I say, in that the other census records are held with the Office of National Statistics. The 1911 census, because it occurred before the Census Act of 1920, is actually in the custody of the National Archives. We are planning to publish it. It is a huge exercise to get the whole census in a way that can be released and nowadays would be released on line after the 100-year point, so that from then on we have got a guarantee that anybody can access any of the information they want very readily. As you may recall, when we released the last census in 2001 the volume of demand was such that it caused considerable problems, so we do recognise the interest. We are not in a position where we could bring forward the planning for releasing the entire census before then, and to go and pick out individual records for people who applied under the Freedom of Information Act would, I think, set the process of releasing the whole census back. There clearly are complicated issues and obviously legal issues under the Freedom of Information Act as well which we are considering. Q220 Chairman: It may well be the subject of an appeal, I presume, but what you are really telling us is that because subsequent censuses are firmly protected by statute in order to give people the reassurance that you mentioned, the 1911 one is an anomaly and the reason you are not prepared to take a more relaxed view, even at this stage so close to the release of the information, is an administrative one. Alex Allan: There are points of principle. Most previous census have followed a 100-year rule and we have opened them up after a hundred years, and the 1921 census and thereafter will all be subject to a 100-year rule. It is a stated principle. When the 1911 census was issued and then it has been completed there were explicit assurances made that the information was provided strictly in confidence, I think were the words used, and as a result we continue to believe that it is appropriate, given, as I say, that all other censuses either have been or will be protected for a hundred years, that we should maintain a 100-year protection for the census as a matter of principle. There are also, as I say, the administrative concerns. We do intend to publish the information. It is not as if we believe that we should hide the information, lock it away. We do have a specific plan, a programme, to publish it all. What we are resisting is publishing it either piecemeal or trying to bring it forward in a way that might well mean we were not successful in publishing it all at once and getting the computer systems in place. Q221 Chairman: As you look ahead, with time to prepare for the next census, there are two things about that. First of all, I presume the 100-year guarantee is expected to be a feature of the next census. Alex Allan: I think it is a feature of the 1920 Census Act, so I think it is a statutory provision now. Q222 Chairman: Secondly, have you given any thought to the thirst the departments have for information and their tendency to want to add things to the census when the census is not a voluntary social survey; it is an exercise in which there are penalties for failing to provide the information, and as the department with this overall responsibility for human rights do you recognise that you have a sort of policing role in saying, "Is it legitimate on pain of penalty to insist that people provide this or that piece of information which the department would find very useful?". Alex Allan: I think in some ways I may fall back on the Lord Chancellor's answer to Mr Wright about policing human rights activities. This is clearly a matter where the Office for National Statistics, who have the responsibility for compiling censuses and also for accepting what questions go into the census, are the people who would decide that balance. Clearly, we would help and provide advice as asked. I imagine if we felt that they were behaving in an outrageous manner and neglecting all human rights considerations we would express that pretty forcefully, but I have no reason to believe that that will be the case. Q223 Chairman: But there have been big issues in previous years, arguments about racial origin questions, about religious questions, different views about whether you should or should not be required to answer such a question on pain of a penalty. Surely the department has some role in dealing with the request, because you did not used to be but you are now the department which co-ordinates all of this information. Alex Allan: As I say, we are responsible for overall policy on human rights. We are not responsible for the census. That is the business of the Office for National Statistics which, like all government departments, have obligations under the human rights Act. We have an overall commitment to spread good practice to make sure they do understand their obligations and we do that. The details of exactly where the balance would fall on one particular issue, if we are satisfied that they have actually thought about the human rights aspects, would be for the Office for National Statistics, and indeed the department responsible for them, which is the Treasury. Chairman: Now that you have returned, Lord Chancellor, as you were in the process of answering Mr Khabra he might like to restate his question. Q224 Mr Khabra: Lord Chancellor, if legal aid is not available to the applicants there are implications to the department and the Court Service. What would be the extra cost? Lord Falconer of Thoroton: The way we did it was, five hours legal advice, and if it revealed that there was not a proper basis for an appeal then legal aid would not be extended, so what we were in effect doing was applying the merits test there. Where there is a shortage of legal aid, which there is, you have to prioritise where you spend your legal aid and always one of the filters has been to spend it on cases which have merit. As to the question, does that make some cases last longer, I am sure that it does. I do not have a calculation for that, but equally I suspect in some cases where you have a lawyer that might last longer because various points are taken which in fact fail at the end of the day, so I suspect it is swings and roundabouts but I have no calculation on which I could base that conclusion. Q225 Mr Khabra: What sort of quality of service will be available? Lord Falconer of Thoroton: Legal advice is available but not representation if, after ascertaining what the factual basis of the application is, it is perceived to be a case that does not have merit. The only service available is advice but not representation unless there is merit in the case. Q226 Keith Vaz: Lord Chancellor, you cannot be comfortable with coming back to the committee each time and telling us that there is still a backlog. Lord Falconer of Thoroton: No, I am not, and that is why hopefully the points system will make some difference to that, and the 100 extra judges I hope will make a difference to that. We need more resources. Q227 Keith Vaz: These 100 extra judges that you talk about: the advert for the extra judges went out at the end of last year. There should have been a sift by now. At a meeting that your junior minister had with Members of Parliament she told those members that the process had been stopped by you. Lord Falconer of Thoroton: Yes. Q228 Keith Vaz: Why did you stop that process? Lord Falconer of Thoroton: Because the way the process had gone I could not be satisfied that a fair selection was being done, by which I mean I was advised that there were inconsistencies in the way that people were being assessed, a number of people had put in referees, as is required, and the referee reports had got separated from the applications that had been made. In those circumstances, in order to have a proper process, I thought the right thing to do was to stop the process that had got some of the way down the road but was, for all the reasons I took, I thought was flawed, and we had to start again. Q229 Keith Vaz: But this sounds chaotic. You have come to the committee and you have said, "We are going to get 100 extra judges"; you want to bring down the backlog. You appointed Henry Hodge to deal with this issue. The Government abolished the whole tier of the appeal system. There is chaos over the appointments system. What is going to happen now? Are you going to have to re-advertise? Lord Falconer of Thoroton: I think we will have to re-advertise. Q230 Keith Vaz: So what is the timetable? Lord Falconer of Thoroton: I do not think the new judge will be there before September or October at the earliest. Q231 Keith Vaz: And will this be done by your department? Lord Falconer of Thoroton: It will be done by my department, yes. It is deeply regrettable and you are right to describe it as being unacceptable, but I am faced with a situation where, if the process is plainly not identifying who the right choice is, then I think we have got to stop and start again. Q232 Keith Vaz: I know you inherited this problem. Lord Falconer of Thoroton: In terms of the actual problem ----- Q233 Keith Vaz: The backlog? Lord Falconer of Thoroton: Yes, the backlog, not the ----- Q234 Keith Vaz: Not the chaos of the recent sift. Henry Hodge told the Home Affairs Committee, as Mr Khabra has said, that he hopes that this is going to be cleared by early spring 2007. You have not even put out the advert for your 100 extra judges. You have to sift, you have to interview, you have to assess, you are going to appoint them by September of this year. The backlog is not going to be cleared by spring 2007, is it? Lord Falconer of Thoroton: Mr Justice Hodge is aware of what arrangements are in place. As I say, it is a downward trend at the moment, not an upward trend. The 100 new judges will obviously make a significant difference to what happens. He is there on the front line. Spring of next year presumably means round about March. That is six months of 100 extra judges. It does not seem to me to be impossible that it could be done then. However, he is in a better position to judge than I am because he is, as it were, the leader at the front line of those appeals. Q235 Keith Vaz: We are having him before us very shortly on that point. I have one final point about rights of appeal. If you look at the statistics on rights of appeal, of those who went for an oral hearing in 2005 for visitors' appeals 52% were successful. When it comes to written hearings it is 31%; these are Home Office figures. What are your views now about the proposals of the Home Office to abolish the oral right of appeal? Lord Falconer of Thoroton: It is in the context as far as the Home Office is concerned of improving decision-making at the first stage. Are oral hearings coming to the right conclusions? Probably they are. If it is only a written hearing, again, are they coming to the right conclusions? Again, it is very difficult to judge. There is obviously a risk in abolishing the oral hearings but is the risk justified by the number of appeals that are wrongly going to be refused? Q236 Keith Vaz: The success rate has doubled. Your judges are doing their job as far as the applicants are concerned. Lord Falconer of Thoroton: The judges are hearing the argument and are, I am sure, coming to the right conclusion. Q237 Chairman: They are assessing the credibility also of the family circumstances which are otherwise described in the written papers. When we did a report on this some time ago it seemed apparent to us that the oral hearings were picking up things in the entry clearance assessment because the judge is in a position to assess the credibility of at least the relatives of the applicant. Lord Falconer of Thoroton: I cannot gainsay the proposition that if you have an oral hearing you are much more likely to penetrate, as it were, beneath the surface of the facts in a way that a written document will not and therefore it has got to be seen of the context of improving the original decision-making. Q238 Keith Vaz: Alex Allan, I am just pondering what the Lord Chancellor has said about this sift process. You, obviously, as the senior civil servant, have to take responsibility for this process. What assurances can you give this committee that when people apply in good faith for a job in the DCA as a judge their applications will be treated with respect, that the references will not be separated from the application forms and that this whole process will not have to be run again? This must be deeply disturbing for you. Alex Allan: It is disturbing and I regret it. As the Lord Chancellor said, the most important thing was that once it had become clear that the process was not operating in a satisfactory way the Lord Chancellor stopped it and started it again, and I think that was the right decision in the circumstances. Of course, I regret the circumstances that led to it. Q239 Keith Vaz: But officials must have been in charge of this process. Why did the officials not stop it? Alex Allan: They reported the information to the Lord Chancellor. Q240 Keith Vaz: And when did this happen? Alex Allan: I am not sure I have got the exact date. Q241 Keith Vaz: And have you written to those people who have applied in good faith for the post to tell them that this chaos is reigning as far as this sift is concerned? Have you written to them? Have you told them? Alex Allan: I will check the exact information that has been given to them. Q242 Keith Vaz: Do you know whether you have written to them? Alex Allan: I do not know. Q243 Keith Vaz: Does this happen on a regular basis? Alex Allan: No. Q244 Keith Vaz: So why do you not know whether they have been written to? Alex Allan: I do not know. Q245 Chairman: Were you able to identify why it happened? Alex Allan: I will let you have some more information about this. I do not know the full details of that. Q246 Mr Khabra: Would you be prepared to consider granting the right of an oral hearing to the family visit appeals? Lord Falconer of Thoroton: We do not have that at the moment. I think not. That is not currently planned, I do not think. Q247 Chairman: Re-reading the committee's earlier report, we, of course, went to look at entry clearance and saw a process which had such inherent flaws ----- Lord Falconer of Thoroton: At the point of embarkation? Q248 Chairman: Yes, and it needed a sound appeal system and the disparity between oral and written appeals seemed to demonstrate to us that once you actually got judges involved in assessing credibility these flaws became apparent. It would seem to us, those of us who took part in the original inquiry, that to predicate a change in the appeals system on an assumption that the entry clearance operation can be perfected is a pretty shaky thing to do. Lord Falconer of Thoroton: That is the context. I am not disputing the efficacy of an oral hearing but I am asserting that it is our policy to try and improve the process at the first stage. Chairman: Thank you very much. We are very grateful to you. |